Basheer v. V.M. Aboobacker and The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **MACA.No.2585 OF 2008** **AGAINST THE AWARD IN OPMV 1647/2003 DATED 26-03-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** **BASHEER, S/O. MUSTHAFA MANELIL HOUSE, KUNNUSSERY, ATHANI.P.O,, NEDUMBASSERY.** **BY ADVS. SRI.K.A.SHAMSUDEEN SRI.K.I.ABDUL RASHEED** ## **RESPONDENT/S:** |**1**|**V.M.ABOOBACKER**| |---|---| ||**VARANATTUPARAMBIL HOUSE,, MILLUPADI,**| ||**EAST VELIYATHUNADU,, U.C. COLLEGE.P.O, ALUVA.**| |**2**|**NADIRSHA S/O. ABOOBACKER**| ||**VARANATTUPARAMBIL HOUSE,, MILLUPADI, EAST**| ||**VELIYATHUNADU,, U.C. COLLEGE.P.O, ALUVA.**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**KODAVATH SHOPPING COMPLEX,, SUB JAIL ROAD,**| ||**ALUVA - 683 101.**| **R1 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 2585 of 2008 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1647 of 2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 18.04.2003, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-7/X-6420 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the motorcycle capsized and the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent rider remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement MACA No. 2585 of 2008 -3- admitting the insurance coverage of the motorcycle involved in the accident; however, contending that its liability is limited as per terms and conditions of the policy. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. The insurer filed additional written statement, contending that no additional premium is collected to cover the risk of the pillion rider. 4. Before the Tribunal, Exts.A1 to A8 series were marked on the side of the appellant/claimant. A copy of the insurance policy was marked as Ext.B1. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the 2[nd] respondent rider. The Tribunal exonerated the 3[rd] respondent insurer from the liability to indemnify the 1[st] respondent insured on the ground that the policy in question does not cover the risk of a pillion rider. Under various heads, the Tribunal awarded a total MACA No. 2585 of 2008 -4- compensation of Rs.56.100/-, together with interest at the rate of 7% per annum from the date of petition till 30.06.2007, and thereafter, at 7.5% per annum till realisation and respondents 1 and 2 are held liable jointly and severally to pay the amount of compensation. The Tribunal directed the 1[st] respondent owner to satisfy the award within a period of one month. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, and challenging the exoneration of the 3[rd] respondent insurer from the liability to pay compensation, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. 8. As already noticed, one of the challenges made in this appeal is against the exoneration of the 3[rd] respondent insurer from the liability to indemnify the 1[st] respondent owner. MACA No. 2585 of 2008 -5- 9. During the course of arguments, the learned counsel for the appellant has made available for the perusal of this Court a copy of policy bearing No.760400/31/02/00831 in respect of motorcycle bearing Reg.No. KL-07/X-6420, which was valid for the period from 18.10.2002, till the midnight of 17-10-2002. The said policy is a 'Package Policy' and not an 'Act Only' policy. After perusing a copy of the policy, the learned Standing Counsel for the 3[rd] respondent insurer would submit that since policy in question is a 'Package Policy', no additional premium is required to cover the risk of pillion rider, and therefore, the award passed by the Tribunal to the extent of exonerating the 3[rd] respondent insurer from the liability to indemnify the 1[st] respondent owner cannot be sustained. In such circumstances, the award passed by the Tribunal to the extent of exonerating the 3[rd] respondent insurer from the liability to indemnify the 1[st] respondent owner is set aside and the 3[rd] respondent insurer is held liable to indemnify the 1[st] respondent insured. 10. Now, the issue that remains to be considered by MACA No. 2585 of 2008 -6- this Court is as to whether the appellant is entitled for enhancement of compensation awarded by the Tribunal under various heads. 11. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 12. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the MACA No. 2585 of 2008 -7- same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Treatment expenses|16,350/-| |---|---| |Loss of earnings|6,000/-| |Transportation expenses|1,000/-| |Extra nourishment|500/-| |Damage to clothings|250/-| |Pain and sufferings|18,000/-| |Loss of amenities|12,000/-| |Attendant's charges|2,000/-| ||----------------------| |Total|56,100/-| ||=============| |14.<br>The accident occurred on 18.04.2003. At the time|| of accident, the appellant was aged 34 years. The appellant MACA No. 2585 of 2008 -8- claimed a monthly income of Rs.3,000/- as driver. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under various heads. ## 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the MACA No. 2585 of 2008 -9- Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 16. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of MACA No. 2585 of 2008 -10- economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 17. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.3,000/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 18. The document marked as Ext.A6 is the wound certificate and Ext.A7 is the discharge summary. As per medical records, the appellant sustained puncture wound over lateral aspect of right ankle, fracture to distal tibia and fracture to lateral malleolus. He had undergone inpatient treatment for a period of 17 days. Ext.A8 series of medical bills are for a sum of Rs.16,350/-. MACA No. 2585 of 2008 -11- 19. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.2,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is fixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (3,000 x 6), resulting an additional compensation of **Rs.12,000/-** (18,000- 6,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 17 days. The accident is of the year 2003. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). MACA No. 2585 of 2008 -12- 21. Towards Attendant's expenses (bystander expenses) the Tribunal awarded a sum of Rs. 2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 17 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head attendant's expenses is re-fixed as Rs.2,550/- (150 x 17), resulting an additional compensation of **Rs.550/-** (2,550 – 2,000). The compensation under the head extra nourishment is re-fixed as Rs.1,700/- (100 x 17), resulting an additional compensation of **Rs.1,200/-** (1,700 - 500). 22. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 23. Towards medical expenses, the Tribunal awarded a MACA No. 2585 of 2008 -13- sum of Rs.16,350/-, covered by Ext.A8 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.18,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.7,000/-** (25,000 – 18,000). 25. Towards loss of amenities the Tribunal awarded a sum of Rs.12,000/-. No materials were placed on record before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. MACA No. 2585 of 2008 -14- 26. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.22,750/-** (Rupees twenty two thousand seven hundred and fifty only) [12,000 + 1,500 + 550 + 1,200 + 500 + 7,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent insurer shall satisfy the compensation originally awarded by the Tribunal and also the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his bank account details (attested copy of the relevant page of the Bank Passbook having details MACA No. 2585 of 2008 -15- of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** das